7 March 1997       Doc. 7771

ADOC7771       Revised

REPORT 1

on the preliminary draft European charter of regional self-government

of the Congress on Local and Regional Authorities of Europe (CLRAE)

(Rapporteur: Mr João MOTA AMARAL,

Portugal, Group of the European People's Party)

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Summary

      This report refers to a preliminary draft European Charter of Regional Self-Government drawn up by the Congress of Local and Regional Authorities of Europe (CLRAE).

      The Assembly participated in the drafting group and supports this initiative which will ensure an international legal guarantee for the self-government of European regions and will facilitate the process of regionalisation in those states undertaking to comply with the principals of the charter.

I. Draft resolution

1.       After many years of considering the problem of regionalisation within the Council of Europe, the Congress of Local and Regional Authorities of Europe (CLRAE) adopted, at its first session in June 1994, its Resolution No. 8, in which it decided to draw up a European charter of regional self-government in co-operation with the Parliamentary Assembly. To this end, the CLRAE set up a working group with responsibility for preparing a preliminary draft charter, in which the Assembly was invited to participate. The Committee on the Environment, Regional Planning and Local Authorities monitored the working group's activities.

2.       On 5 July 1996 the CLRAE adopted Resolution No. 37 on the European charter of regional self-government, whereby it provisionally approved a draft European charter of regional self-government. After wide-ranging consultation, a final version of the draft will be resubmitted to the Congress at its fourth session (3-5 June 1997)

3.       In a letter of 15 July 1996, the President of the CLRAE requested the Assembly to give an opinion on the draft charter, which will be taken into account in the final text to be drawn up by the CLRAE. The Committee on the Environment, Regional Planning and Local Authorities was asked to prepare that opinion.

4.       The Assembly believes that recognition of regional self-government is consistent with implementation of the principles defended by the Council of Europe and that the draft charter is a useful complement to the European charter of local self-government. In a Europe under construction it is also important to guarantee the principle of subsidiarity, firstly by furthering the development of territorial democracy, particularly at regional level, and secondly by promoting regionalisation as an alternative to centralised policies which often prove incapable of providing an effective solution to certain local problems.

5.       The Assembly congratulates the CLRAE on its praiseworthy initiative of preparing this draft charter, which it fully supports, and is gratified to have been involved in the travaux préparatoires from the outset, enabling it to make contributions throughout the drafting process.

6.       The Assembly is convinced of the value and benefit of preparing a legal instrument laying down the general principles of regional self-government, with due regard to the different national traditions, at a time when several member states have already established regional authorities and others are embarking on a regionalisation process and when there is no binding international instrument on the subject.

7.       Now that local self-government has been more securely guaranteed through the European charter of local self-government it is important that the Council of Europe should go one step further and equip itself with a European charter of regional self-government which reflects another of our continent's institutional realities. Such a text will give the regions of Europe an international legal guarantee of respect for their autonomy and may serve as a reference for regionalisation processes under way or planned in certain member states.

8.       The Assembly is generally satisfied with the current wording of the draft submitted to it and welcomes in particular the decision not to define the term "region", since not only is such a task intrinsically fraught with difficulties but it would also have been impossible to take account of the vast institutional diversity of Europe's regions. As to the text itself, the Assembly will confine itself to a few comments while awaiting the final version currently being prepared.

9.       The Assembly is also in favour of the innovation whereby this text allows states not yet in a position to comply with the charter's provisions to undertake to do so following a given timetable. This possibility should prove very helpful to states which have not yet set up regions but wish to embark on a regionalisation process.

10.       The Assembly will continue to co-operate in the further work on a final version of the draft charter and will give an opinion on the final text when the time comes.

II. Explanatory memorandum

by the Rapporteur

      At its first session, in June 1994, the Congress of Local and Regional Authorities of Europe (CLRAE) adopted Resolution 8 (1994) on the Conference on "Regionalisation in Europe: evaluation and perspectives". The resolution invited the Chamber of Regions and the Chamber of Local Authorities to draw up a European charter of regional self-government, modelled on the European Charter of Local Self-Government, in co-operation with the Parliamentary Assembly.

      On the basis of that resolution the CLRAE set up a working group with responsibility for preparing a preliminary draft charter. The Assembly was invited to take part in the travaux préparatoires and, on its behalf, the Committee on the Environment, Regional Planning and Local Authorities sent representatives to the meetings of the working group. Being a former member of the CLRAE, I had the honour to participate in the work of that working group from the beginning. As a member of the Parliamentary Assembly, and Rapporteur of the Committee, it is with pleasure that I continued to take part actively in this project.

      The working group prepared a preliminary draft charter, which was discussed and approved by the CLRAE's Chamber of Regions and adopted by the CLRAE's Standing Committee on 5 July 1996. This text is set out in CLRAE Resolution 37 (1996), which was transmitted to the Assembly with a request for an opinion (see Appendix I).

      On the basis of the Assembly's opinion, of opinions sought from other bodies (notably the European Union's Committee of the Regions) and of consultations with regions or their representative associations (notably the Assembly of European Regions and the Council of European Municipalities and Regions), the CLRAE will prepare a final version of the preliminary draft charter, which will be submitted to the Congress for adoption at its fourth session (3-5 June 1997).

      It must be pointed out that this Assembly opinion is in fact only an interim one pending the final opinion, which will be given when the text of the preliminary draft charter adopted by the CLRAE is transmitted officially to the Assembly after finalisation.

      For that reason I do not consider it necessary to examine this first preliminary draft in detail, but think we should rather confine ourselves to general comments while awaiting the final text.

      Firstly, we must welcome this CLRAE initiative which, it is to be hoped, will rapidly supplement the Council of Europe's arsenal of treaties, once the Committee of Ministers has examined the charter and decided to open it for signature as a European treaty. The text is in fact particularly well-timed when almost everywhere in Europe regionalisation processes have either led to the establishment of regions enjoying a greater or lesser degree of autonomy, or have been initiated or are being debated or considered.

      The planned new charter of regional self-government is a fitting complement to the earlier initiative of the European Charter of Local Self-Government, which was adopted in 1985 and came into force in 1988. That instrument has been, and remains, particularly useful to the democratisation process in central and eastern Europe which began in 1989. Moreover, it has become one of the Council of Europe's reference treaties.

      Although local democracy is not fully entrenched, developed or applied in all the Council of Europe member states, it can be assumed that there will be no turning the clock back and that the basic principle of local democracy will no longer be called into question. Hence this initiative to go one step further with the legal safeguards existing at European level to uphold territorial authorities' right to self-government, this time in respect of the regions.

      The initiative was all the more justified in that, having completed the first stage of setting up new democratic institutions at local level, some of the new member states in central and eastern Europe felt the need to move further along the road to greater political democracy by establishing a second tier of authorities between the municipalities and central government: the regions. Furthermore, other older members of the Council of Europe have themselves already created regional institutions, in some cases a long time ago, and are completely satisfied with the result, since none of them has since cast doubt on the institutional arrangements. This is therefore another political and institutional advance that will not be reversed by the countries concerned, which explains the Council of Europe's interest in envisaging this state of affairs in a new legal instrument proposed by the CLRAE.

      Despite the fears to the contrary and the criticisms, we believe it can be said that in the countries where regions have been set up they have helped further the development and consolidation of democracy. Development of an intermediate tier of political institutions makes it possible, inter alia, to avoid excessive concentration of power, facilitates political checks and balances and citizen involvement (greater openness because authority is exercised closer to the people), brings decision-making nearer to citizens (the subsidiarity principle), increases administrative efficiency (faster decisions and improved knowledge of problems), is a means of satisfying certain population groups' desire to assert their identity and of responding to regional particularities (geographical, linguistic, cultural or other), and so on.

      The regions have also helped to buttress economic growth and to establish a closer-knit society, but without jeopardising their respective central governments' policies. Indeed, quite the opposite is true.

      What is more, in a gradually emerging Europe where the construction process under way often involves the unification, and therefore even greater centralisation, of certain national powers (this applies above all to the European Union), care must be taken to ensure that this process does not result in a decline in the quality of democracy and a loss of democratic substance on account of the distance at which the centres of power and the decision-making authorities are located, the transfer of a growing number of powers to the European level, and the demotivation of the general public, who may feel increasingly unconcerned by decisions over which they have less and less control.

      Paradoxically, as has often been pointed out, European unification will doubtless have to go hand in hand with the development at internal level of regions which a. where they exist can guarantee citizens easier access to those decisions which most directly affect them and b. will enable them to identify more closely with their elected representatives.

      This is another reason why we see an interest in this draft European charter of regional self-government: it will constitute an international legal guarantee for the regions of Europe, which may find in it a recognition of their raison d'être and a confirmation of their essential role in the new Europe being built.

      This charter will therefore be extremely useful not only to the regions that already exist or are being set up, but also as a possible source of inspiration and a framework for other member states of the Council of Europe wishing to launch a regionalisation process.

      However, I should also like to refer to two important aspects of this text, areas where doubts may be present in some minds as to its potential consequences failing the establishment of the necessary safeguards. I am thinking of respect for local self-government and for national sovereignty.

      In my opinion, any ulterior motives or hidden agendas here must be rejected out of hand. The draft charter has absolutely no ambitions in this direction: it merely aims, in the spirit and philosophy of the Council of Europe and applying the Organisation's principles, to develop democratic institutions on our continent, which is no trivial matter. This is how its authors intended and conceived it, and it is also how we perceive it within the Assembly.

      Moreover, to counter all suspicions of any kind, paragraphs 10 and 14 of the preamble rightly provide, firstly, that the regions must protect the autonomy of local authorities (Article 8 contains provisions to the same effect) and, secondly, that they must not interfere with loyalty towards the state or undermine its territorial integrity.

      It should also be pointed out that Europe has a wide variety of regional models, ranging from federal states to those which have opted for regionalisation to varying degrees and set up regions with extremely different structures and powers (sometimes these even differ within the same state). It would therefore no doubt have been difficult to draw up a text inspired by a particular type of region, since the charter had to be applicable to the largest possible number of these diverse institutional situations.

      We should therefore welcome the authors' decision not to define a region — a task which would moreover have been very difficult since theorists cannot agree on the subject — and so leave accession to the charter open both to states which already have regions and to states where regionalisation is in progress. A precise definition would in a way have been tantamount to imposing a given form of region, which would have been undesirable and, in any case, would certainly be unacceptable for certain states.

      Moreover, a definition would have made difficult the future of the processes under way in several countries, although those processes are by nature evolutionary and have in the past given rise (and will no doubt give rise in future) to new forms of regionalisation which the new charter must allow for.

      However, even though the draft charter does not precisely define the region, it is possible to infer a definition from the provisions on competences, institutional organisation and regional funding (Articles 4 to 20).

      The definition of regional self-government in Article 3 nevertheless gives some indication of what constitutes a region ("largest territorial authorities within each state, having elected bodies, administratively placed between central government and local authorities, and enjoying prerogatives either of self-organisation or of a type normally associated with the central authority ...") and, without really defining regions, makes it possible to draw their institutional outlines and grasp their substance. It is probably neither possible nor advisable to go any further in a general text such as this, which must cater for a wide range of institutional situations.

      What is more, Article 25 of the draft charter (undertakings and reservations) takes account of this diversity by permitting states to make reservations to certain articles.

      It can therefore be considered that it was difficult for the authors to go any further without from the outset jeopardising the charter's actual existence, although the current draft may cause some legal difficulties because of the vagueness of certain of its precepts. But, by striving too hard for precision in the concepts, would it have been possible, via such a charter, to encroach upon the states' prerogatives with regard to the organisation of their own domestic institutions?

      Moreover, the authors had been instructed to draw inspiration from the European Charter of Local Self-Government and therefore followed that model, mutatis mutandis, notably with regard to the absence of a definition.

      Since the model has proved its worth, it would be surprising if its application and extension to regional self-government were a source of difficulties that had not already come to light earlier in the sphere of local self-government. In any case, it would no doubt be hazardous to take the risk of innovating in a field such as regional self-government where, as already mentioned, there is no standard situation in our various countries by any means.

      In this respect I, in common with the Assembly, can but give credit to the authors of the charter for their justifiable caution, as otherwise the initiative's objective would itself have been thwarted from the outset. It is an initiative which, with the backing of the Assembly and the approval of the Committee of Ministers, should enable the Council of Europe to adopt the first international legal instrument to acknowledge regional autonomy and lay down rules for it.

      There are nevertheless a number of random comments I should like to make on certain provisions of the draft charter.

      I consider that the last part of paragraph 1 of Article 3 (Principles) ("... in particular in view of favouring the regional sustainable development") should not appear at this point in the definition of the principle of regional self-government. This definition, no matter how flexible, should be confined to political and legal concepts. It would be better to include any references to the objectives of regional self-government or examples, such as the expression cited (which is moreover imprecise), in the explanatory memorandum on the charter or, as appropriate, in the preamble, for instance at the end of paragraph 15.

      It could be asked whether there is a need for provisions such as those contained in Article 10 on transfrontier relations and bodies, in so far as such relations can be regarded as a specific kind of interregional relations, which are governed by Article 9. It might be thought sufficient for interregional relations to encompass transfrontier relations, provided this is pointed out in the explanatory memorandum, especially as there is a specific instrument which governs such relations — the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities (1980), which has moreover recently been completed by an additional protocol (1995).

      In another connection, that of the reservations permitted under Article 25.2, I should like to see the scope of such reservations restricted so as not to curtail that of certain provisions. It may be going too far to allow reservations to Article 5 (Power of execution) in that the article does no more than express a desirable possibility ("... it is desirable that ..."). That Article therefore does not give rise to any form of legal obligation per se on the states which ratify the charter. Consequently, with the wording as it stands, I do not consider it essential to allow such reservations.

      Nor would it be justified to allow reservations to Article 10.2 (Transfrontier relations and bodies) if, as proposed above, transfrontier relations were to come under Article 9 and be governed by the provisions of the outline convention.

      As for reservations to Article 13.2 (Participation in European and international affairs), I do not see that there is any ground for such reservations. Before taking any action directly affecting the powers of the regions, central government must unquestionably consult them. On the other hand, it would be more acceptable to allow reservations to the last part of this paragraph (which might become paragraph 3) on inclusion of regional representatives in national delegations.

      Lastly, I also disagree with the possibility of making reservations to Article 16.3 (Regional administration) as regards the conditions of service of regional authorities' staff, since the scope of the provision is already limited by its own wording ("... within the limits of such general principles..."). In so far as paragraph 1 of this article entitles regions to their own staff, it seems normal that they should be able to determine the staff's conditions of service subject only to the restrictions laid down in paragraph 3 itself.

      Conversely, in view of the practical difficulties some states might encounter in implementing it, it could be possible to allow reservations to Article 11 (Representation abroad), at least the second part, which might be made into a separate paragraph. Although setting up liaison offices vis-à-vis other regions should not pose any particular problem, difficulties might be encountered in doing so with international organisations other than the European Union, which should be regarded as a special case and with which many regions have already set up a liaison office. It would be more judicious to allow reservations to the second part of the paragraph, if necessary making it into a new paragraph.

      In addition, with regard to Article 26 (Control of the application of the charter), nothing is said about any role the Assembly might play in the procedure. The Assembly has no desire to encroach upon one of the CLRAE's spheres of competence and regards the latter as the appropriate body to implement a periodic review of the application of the charter, in conjunction with the Committee of Ministers.

      However, as the parliamentary arm of the Council of Europe and in the broader framework of the procedure for monitoring member states' obligations and commitments, the Assembly would find it helpful if the reports transmitted with observations by the CLRAE to the Committee of Ministers and the Committee of Ministers' conclusions were sent to it for information. The Assembly would like a paragraph allowing for this possibility to be added to Article 26.

      I also have some doubts about the wording of Article 29 (Regions to which the charter shall apply), particularly the second sentence. Although there is nothing to be said against the principle of limiting the scope of the charter, it is undesirable that the parties should be allowed to exclude certain regions from its scope.

      But this is doubtless a case where the wording does not reflect the authors' intentions. As it stands at present, the provision would appear to allow the exclusion of regions on an individual basis, which would scarcely be acceptable. It is likely that the authors used the term "regions" when they meant "categories" or "types" of regions (regions, provinces, départements, etc.), in which case the draft should be amended accordingly. Moreover, an analogous term is used in Article 13 of the European Charter of Local Self-Government, which refers to "categories of local authorities".

      Lastly, the Assembly considers that a very positive innovation has been made in Article 27 (Undertaking of states in a process of regionalisation). Under this article, states which have not yet set up regions (and are therefore not bound by the charter) but have launched a regionalisation process may undertake to abide by the principles of the charter and to apply them within a ten-year period. This provision allows states wishing to set up regions to do so in accordance with the Council of Europe's principles from the very start of their regionalisation process, making clear their intention to comply with those principles.

      With regard to Article 30 (Accession by European non-member states of the Council of Europe), I doubt the usefulness of such a provision at a time when almost all the countries of Europe are already members of the Council of Europe or are on the way to becoming members in the fairly near future (Armenia, Azerbaijan, Belarus, Bosnia and Herzegovina and Georgia enjoy special guest status with the Assembly and have already lodged membership applications, which are currently being examined by the Assembly). Moreover, to illustrate our point, the Assembly has just decided to do away with its Committee on Relations with European Non-Member Countries for that reason. It is highly likely that by the time the Committee of Ministers opens the charter for signature and the above-mentioned states may be interested in acceding to it, they will already be members of the Organisation and this article will therefore be pointless.

      If it was desired to preserve this idea of opening up the charter, another possibility would be to amend the wording of Article 27 (Undertaking of states in a process of regionalisation) slightly by dividing the two sentences in paragraph 1 into two separate paragraphs.

      The first paragraph might read as follows: "States, including European non-member states, in which a process of regionalisation ...". The second could then specify: "Member states (or each party) shall undertake ...".

      In this connection, the ten-year time-limit to apply the charter in full seems excessive for states engaged in a regionalisation process and which, it can be assumed, effectively intend to set up regional authorities rapidly if they undertake to abide by the charter's principles. Their commitment would be fairly meaningless if such a long time-limit were left unchanged. We think a period of five years would suffice and would be more credible for the states concerned.

      This new provision, allowing states that so wish to commit themselves immediately to a process which, from the outset, will be in accordance with our organisation's principles and practices, should be applauded.

      Lastly, I have some doubts as to the relevance of the proposals set out in Appendix 2 to Resolution 37 (1996) (Proposals made by the delegates during the 3rd session of the Congress).

      In respect of the first proposal, the wording of the draft charter seems better as it stands, despite the difficulties already mentioned concerning the definition of a region. If necessary, the expression used in the first transitional provision of the CLRAE's charter ("... authorities of a level immediately below national governmental level which have their own attributions and elected organs...") would seem more appropriate and would avoid increasing the number of definitions used within the same organisation. In any case, the proposed expression concerning territorial authorities "on par with local authorities" seems inappropriate and should not be adopted.

      As to the second proposal, we consider it politically sensitive and likely to cause several states groundless fears which might lead them to refuse to sign the charter, or even to engender real problems between neighbouring areas, which would be counter to the Council of Europe's intentions and its traditional practice in matters of transfrontier co-operation. We would therefore be against the adoption of such a proposal.

      The third proposal is, in our opinion, not essential as, a. it refers to another organisation, the European Union, whose member states are different from those of the Council of Europe, and b. the charter is specifically aimed at member states of the Council of Europe and does not contain any provision on possible accession by the European Union. Moreover, since the charter does not concern the European Union the paragraph's wording might be construed as an interference with that organisation's competences ("The principle of solidarity also entails..." "This compensation system must be so arranged as to...").

      Such a stance on the internal policy of another organisation, especially in the text of a treaty, is scarcely acceptable. This proposal should rather be the subject of a recommendation, which might be submitted to the European Union in a suitable text. We therefore propose that it be rejected or, if necessary, that a purely factual reference be included in paragraph 1 of Article 19, for example by adding the words: "It shall take account of the financial compensation arrangements adopted within the European Union" at the end of the paragraph.

      In conclusion, the Assembly welcomes the preparation of this charter, to which it gives its wholehearted support from the point of view of both the political expediency of such an initiative in today's Europe and of the content, which undoubtedly meets the needs of Europe's regions. The Assembly fully concurs with the CLRAE's objectives and the wishes expressed by the regions of Europe in respect of this initiative and will recommend that the charter be adopted by the Committee of Ministers as soon as possible.

      The Assembly wishes to state as of now that it would like this charter to be given treaty status on an equal footing with the European Charter of Local Self-Government, thereby completing our Organisation's range of legal instruments in the field of territorial democracy and self-government.

Reporting committee: Committee on the Environment, Regional Planning and Local Authorities.

Budgetary implications for the Assembly: none.

Reference to committee: standing mandate.

Draft resolution adopted by the committee on 24 February 1997.

Members of the committee : Mr Briane (Chairman), Mr Ruffy, Mrs Severinsen, Mrs Aytaman (Vice-Chairpersons), MM. Abdulatipov, Akçali, Andreoli, Assis Miranda, Besostri, Blaauw, Mme Blunck, MM. Bonrepaux, Büchel, Chircop, Christodoulides, Ms Ciemniak, MM. Ciupaila, Cox, Ms Dromberg, MM. Erroi, Feldmann, Frunda, Gregory, Haraldsson, Hardy, Hoeffel, Ms Jaruga-Nowacka, Mr Johansson O., Ms Johansson, MM. Kopliku, Korakas, Kovacevic, Kukk, Lie, Lukas, Martinez Casan (Alternate: Onaindia), Mocanu, Molnár, Mota Amaral, Mozetic, Mme Naoumova, Lord Newall (Alternate: Sir Keith Speed), MM. Penz, Plattner, Priedkalns, Prokes (Alternate: Fico), Prusi, Rakhansky (Alternate: Dron), Recoder (Alternate: Bolinaga), Ms Riess-Passer, MM. Rizzi (Alternate: Rodeghiero), Rott, Samofalov, Shishlov (Alternate: Ms Oleinik), Skoularikis, Sobyanin, Staes, Steolea, Svoboda, Theis, Toshev, Valkeniers, Woltjer, Zierer.

N.B.       The names of those members present at the meeting are printed in italics.

Secretaries of the committee : Ms Cagnolati-Staveris, Mr Sixto.

APPENDIX

1 ¹by the Committee on the Environment, Regional Planning and Local Authorities.